Honorable Stanley Timmins

CountyAttorney Marshall, Texas
Dear Sir: Opitiion No. O-209 Re: Validity of delinquent Tax Contract This offloe is~in receipt of your letters of January 30th and February 4th, outlining certain facts and &questing an opinion in response to certain questions which will sufficientlyappear below.

Article.7335,Revised Civil Statutes, reads as follows: "Wheneverthe commissioners courts of any ccuntg after.thirtydays written notice to the county attorney or district attorney'to file delinquent tax suits and. his failure to do'so, shall deem itnecessary or expedient, said courtmay contract.withany competent attorney to enforee or assist in the enforcementof the c~ollection

of any deiinquent State and county taxes for a per cent on the taxes, penalty and interestactually collected, and said court is further authorized to pay for an abstract of property assessed or unknown and unrendered from the taxes, interest and penalty to be collected on such lands, but all such payment and ~expensesshall be contingent upon the collectionof such taxes, penalty and interest. It shall be the duty of the county attorney, or of the district attorney, where there is no county attorney, to actively'assist any perscmwith whom such contract ismade, by filing and pushing to a speedy conclusion all suits for collection ofdelinquent taxes, under any contractmade as herein above specified;provided that where any district or county attorney shallfail or refuse to file and prosecute such suits in good faith, he shall not be entitled to any fees therefrom, but such fees shall nevershalessbe collected'asa part of the costs of suit and applied on the payment of the compensation allowed the attorney prosecut$ng the suit, and the attorney with whom such contracthas been made ishereby fully empowered and authorleed to, proceed in such suitswithoutHon. Stanley TimmIns,February 10, 1939, Page 2, O-289

the joinder and assistanceof said county or district attorney." Article 7335a, Revised Civil Statutes, provides:
"Sec. 1. NO contract shall be made or entered into by the Commissioners 1 Court in connectionwith the collection of delinquent taxes where the compensation under such contract Ismore than fifteenper cent of the amount collected. Said contract must be approvedby both the Comptrollerand theAttorney General of the State of Texas, both as to substance and form. Providedhowever the County or District Attorney shallnot receive any compensationfor any serviceshe may render in connectionwith the performance of the contract or the taxes collected thereunder.
%ec. 2. Any contrac~tmade In violation of this Act shall be void." '_ The CountyAttorney of Harrison Countywaived the notice to.whichhe was otherwise entitled underArticle 7335. However, that CountyAttorney was succeeded~byanotherman, ldr;Stanley TImmins, on January 1,'1939,whopromptly advised the Commissioners'Court that he would take care of all tsx matters as.provIdedby statute and stoutly maintains that it is hIsrIght'to do so.

Since the date of the contract,the countyhas been paying the contractor-co11ector~~100.00per month under the contract, althoughneither the Comptrollernor theAttorney Generalhave approved the same as requiredby Article 7335a.

We are asked two~questlons, in effect, as follows: (1) Is the contract betwe,en Harrison Comty and A. E. Shepher valid? and, (2) are the monthly~payments to him authcrized by law? This Departmenthas recently held that such contracts can bevalidly made withattorneys only.

'In 14 Amerioan Jurisprudence,210, the following said: II The members of a board of county commissIoner~.~~a~not,

however, contract In reference to IS

mattera'which are personal to theirsuccessors. Thus, a~contract by which a board of county commissioners attempts to employ a legal adviser for a period of three years, to commence threemonths in the future and after the time~forthe election of a person to fillHon. Stanley Tlmmins,February 10, 1939, Page 3, O-289

the vacancy causedby the expirationof the term of office of one member of~theboard, the term of employment extending over a period duringwhich all the members of theboard as constituted at the time of the contractwill retire therefrom unless reelected, is against public policy

. . :'I .This.geemsto be the law In Texas, which Is expressed in 11 Tex..Jur., 631, as follows:

"Ordinarily,contractsmade by a commissioners* courtmay not be repudiatedmerely because the personnel of the body has subsequentlychanged. It is only where the employmentby a commissioners' court is personal and confidential,as inthe 0888 of an attorney, that It is held that one commissioners' courthas no power to bFnd its successors.s This last quoted.statement is based,on the only Texas case on the subject, the case of Gulf Bitulithic Co. v. Nueces County, 11 S.W. (2d) 305,,which says:

"It Is only where the employment by'a commissioners' court Is personal and confidential,as In the case of an attorney, that It is held that one commissionersrcourt cannot bind its successors.s The court decisions inmost of the other states that we have foundhold that one commissioners' court cannotbind Its successors on personal contracts. Coffey Countyv. Smith, 50 Kan. 350, 32 Pac. 30 (employmentof county printer); Franklin Countyv. Ranck, 9 Ohio C.C. 301 (employment-ofcourthouse janitor);Milliken v. Edgar County, 142 111. 528, 32 N.E. 493 (employmentof poorhouse superintendent); Board of Commissionersv. Taylor, 123 Ind. 148, 23 N;E. 752 (employment of attorney); and Willett v. Calhoun County, ZL7 Ala. 687, 117 So. 311 (employmentof attorney).

A tax collector-attorneywould need tact, patience and diligence, and a commissioners' court would have every Incentive to want a man with those qualities, In short, each commissioners'court should be entitled to make its own contracts touching on the matter.

Furthermore, the newly elected CountyAttorney has rights which we do not believe can be overlooked.

Article 7332, Revised Statutes, provides for the county attorney torepresent the State and county In suits for delinquent taxes and provides fees for such services.

The county attorneywas electedwith the understandingHon. Stanley Timmins, February 10, 1939, Page 4, O-289

that the~abovewould be a part of his duties and thathe would be paid for performing the same. We do not believe a closing adm-bistrationof a commissioners' court,based upon a waiver signedby an outgoing county attorney, can deprive the Incomin: county attorney of these valuable rights. Also, we do not believe the County canbe thus deprived of any change of having the newly elected county attorney perform these services at less cost than the attorney-contractorwI11 perform the same.

It has been held that until such contractshave been approvedby both the Comptroller and theAttorney General they are void. Sylvan Sanders Co. vs. Scurry County, 77 S.W. (2nd) 709; Essterwood vs. Henderson County, 62 S.W. (2nd) 65; White vs. McGill, 109 S.W. (2nd) 1102, 114 S.W. (2nd) 860.

Hence, there has existed no contract between Harrison County and Mr. Shepherd.

Both questions are answered in the negative. The contracthas not yet reached this office, but It necessarily follows from the above thatwe would be forced to withhold our approval.

Yours very truly ATTORNEY GENERAL OF TEXAS

BY Glenn R. Lewis

hssistant

GRL:N-cg
APPROVED
ATTORNEY GENERAL OF TEXAS